DNA proves court right to suspect eyewitnesses

April 28, 2007|By GREGORY KANE

Jerry Miller reached a milestone this week, but I'm willing to bet it's one he'd prefer didn't involve him at all.

Miller was arrested as a suspect in the kidnapping, rape and robbery of a Chicago woman in 1981. He was convicted in 1982, sentenced to 45 years and paroled in 2006 as a registered sex offender. Miller had to wear an electronic monitoring device, couldn't answer his door for Halloween trick-or-treaters or leave his job when he took a lunch break.

Then DNA testing intervened. Semen on the victim's clothing was tested for DNA, and it wasn't Miller's. On Monday, Miller became, according to the Innocence Project, the 200th person in the country to be exonerated as a result of DNA testing.

"The Cook County state's attorney's office joined us in asking the court to vacate [Miller's] conviction," said Eric Ferrero, a spokesman for the Innocence Project, a 15-year-old organization founded to help prisoners who could be exonerated through DNA testing. But how was Miller convicted in the first place? It wasn't from physical evidence. It was from that old reliable prosecutorial standby eyewitness identification, which is frequently proving to be highly unreliable.

You read that correctly. Ferrero didn't say "7 percent." He said "77 percent." As in 154 people being wrongfully convicted because jurors gave far more weight to eyewitness identification than is warranted by the facts.

"The vagaries of eyewitness identification are well known," the Supreme Court held in United States v. Wade. "The annals of criminal law are rife with instances of mistaken identities."

That was in 1967, during the era of the Warren Court, long reviled by conservatives as being too liberal, too pro-criminal and too eager to shackle the police. But 40 years and 200 DNA exonerations later, it looks like Chief Justice Earl Warren's court was, at the very least, right about eyewitness identification.

And that identification is even more unreliable if race is a factor. According to e-mail from Alice Leeds of the Innocence Project, "two-thirds of the 200 people exonerated through DNA are African-American. Most of the wrongful convictions that were overturned by DNA were rapes - and the majority of the cases (more than 60 percent) involve black men who were misidentified by white rape victims."

Here in Baltimore, cross-racial identification was a factor in the case of Walter Lomax, whose term of life in prison was overturned last December after he had served 39 years for the murder of convenience store owner Robert Brewer. Five witnesses - all white - identified Lomax as the killer. None testified about seeing the cast on his right hand, which had been injured in a fight about a week before the robbery.

Lovers of irony will note that this happened to Lomax in 1967, the very year the Supreme Court gave the nation its admonition about "the vagaries of eyewitness identification."

I talked to Lomax on the telephone yesterday. He didn't know about the Wade case, and paused after I asked his reaction to his being fingered as a murderer based on eyewitness identification the very same year Supreme Court justices warned Americans to be leery of the practice.

"I know that during that time the racial climate was such that it didn't make a difference," Lomax answered. "You had a white man who was killed and a black suspect. They didn't care anything about justice for young African-Americans."

Lomax didn't elaborate about the racial climate in either Baltimore or the nation circa 1967, but a brief recap might be in order. When Lomax surrendered to police on Dec. 13, 1967, after learning there was a warrant for his arrest, that was only three years after Baltimore's finest conducted warrantless searches of 300 black households in an attempt to find cop killers Samuel and Earl Veney.

Baltimore police were armed for war - as in toting submachine guns and tear gas - during those searches that even the conservative U.S. Court of Appeals for the 4th Circuit called "the most flagrant invasions of privacy ever to come under the scrutiny of a federal court."

During the "long hot summers" of the mid-1960s, there were scores of urban riots nationwide, some of the deadliest being the 1965 Watts riot in Los Angeles and the upheavals in Newark, N.J., and Detroit in 1967. The Kerner Commission Report, issued in 1968, said that police brutality was the spark that ignited most of the riots.

In 1968, Baltimore was among the cities that burned after the assassination of Martin Luther King Jr. It was also the year that Lomax went to trial. It was in this racial tinderbox that Lomax and who knows how many others were expected to get something resembling a fair trial.

"If I had lived in Texas or Florida, where `Old Sparky' was kicking down there, I could have been dead," Lomax said.

There was no DNA evidence to help free Lomax, only what he called some "good detective work" funded by Centurion Ministries, a New Jersey organization that helps innocent inmates who have been wrongly convicted. Lomax, the 40th inmate Centurion has helped free from prison, said Centurion Ministries spent "a king's ransom" to investigate his case and that there are many more innocent men in prison who have no financial resources and whose cases didn't involve DNA evidence. (Ferrero said the Innocence Project only handles cases where there is DNA evidence.)

We'd all like to think the American justice system is better than that. But we'd better start hoping that those 200 DNA exonerations aren't just the tip of a very large and troubling iceberg.